Republicans are using an obscure bill to quietly erode the separation of church and state

With media attention focused on the national debate raging over health care, it would be easy to ignore the spending bill quietly making its way through the House of Representatives. Such proposals often dwell in the largely mundane machinations of the federal government, and technical disputes over its complicated provisions can fly under the radar.

But if you care about the separation of church and state, this year’s bill might be worth paying attention to.

Tucked deep inside more than 200 pages of text is a tiny provision, recently added by the House Appropriations Committee, designed to defang the so-called Johnson Amendment — a section of the tax code that bars churches (a broad legal term that includes most faith groups) and other tax-exempt nonprofits from explicitly endorsing political candidates.

In its current form, the bill would effectively defund attempts by the IRS to take action against churches who violate the amendment by engaging in explicit political action. Any movement on the issue would necessitate a 90-day waiting period and require agents to notify two congressional committees and get sign-off from the head of the IRS. Nonprofits that lack a faith affiliation, meanwhile, would still be beholden to the amendment.

This isn’t the first attempt to hobble the statute. President Donald Trump has promised to “totally destroy” the Johnson Amendment, and weakened its enforcement in an executive order he signed back in May. The move, in turn, was celebrated by Religious Right leaders who have long championed repealing the provision as part of their “religious liberty” agenda, arguing it inhibits their free speech.

But experts say the GOP-led effort may be about something else, as the law is almost never enforced to begin with. Instead, the impetus for repealing the Johnson Amendment — especially quietly — may have less to do with ‘religious liberty’ and more to do with using religion as a means to create a new form of political power.

Repealing the Johnson Amendment is a solution in search of a problem

The debate over Johnson Amendment is relatively new, but the law has been around for more than half a century. Inserted into a 1954 tax bill by then-Sen. Lyndon Johnson, the provision prohibits nonprofits — both faith-based and others — from endorsing candidates or being explicitly partisan in their work. Groups that violate the ban risk losing their tax-exempt status.

The law went largely unchallenged for decades. In recent years, however, conservative (especially evangelical Christian) leaders have drummed up opposition to it, arguing it detrimentally impacts faith-based institutions. Since 2008, the right-wing group Alliance Defending Freedom has organized “Pulpit Freedom Sunday,” in which more than 1,000 pastors deliver political sermons and mail recordings of their remarks to the IRS, daring them to take action. The effort appeared to crescendo earlier this year: In February, Rep. Steve Scalise (R-LA) introduced the Free Speech Fairness Act in the House, which would strike down amendment.

But while the IRS has sent sternly worded letters to churches that preach partisan politics from the pulpit, experts say only one church — Church at Pierce Creek in Conklin, New York — is known to have lost its tax-exempt status for violating the provision over the past three decades. After a lengthy legal battle, the church was punished for taking out a full-page ad against Bill Clinton in USA Today during his 1992 campaign for president. (In a twist, the church was represented by one Jay Sekulow — who now serves as one of President Trump’s many lawyers.)

“There have been very few organizations that have lost their exemption…The typical answer was to slap people on the wrist. There’s a real problem when the answer is ‘you lose exemption’ — the IRS would look for any way it could get around making that choice.”

“There have been very few organizations that have lost their exemption,” Philip Hackney, a LSU law school professor and the former IRS attorney, told ThinkProgress. “The typical answer was to slap people on the wrist. There’s a real problem when the answer is ‘you lose exemption’ — the IRS would look for any way it could get around making that choice.”

Hackney listed several possible reasons why the IRS doesn’t expend more energy cracking down on violations. The agency likely doesn’t have enough staff and resources to prioritize the issue, for example, and generally considers such violations to be a small problem. The bar for enforcing the rule is also unusually high: Investigating a church requires approval from high-level IRS officials, which Hackney said makes the process “very costly.”

Another equally important factor, however, is the threat of political blowback.

“There is a real danger to enforcing a provision on churches, particularly one that is such a salient issue on so many people,” Hackney said. “It’s politically problematic [for the IRS commissioner]…there is a natural tendency, because of the danger of touching this, to not do a ton of enforcing.”

“It’s politically problematic [for the IRS commissioner]…there is a natural tendency because of the danger of touching this to not do a ton of enforcing.”

Meanwhile, the exact number of churches investigated by the IRS remains a well-kept secret. When ThinkProgress asked IRS officials for data on churches or faith-based nonprofits who have been audited or had their tax-exempt status revoked for violations of the Johnson Amendment, they demurred. Spokespeople argued revealing such information would violate various tax laws. (Section 6103 of the Internal Revenue Code, for example, prohibits the IRS from disclosing returns or return information.)

The IRS seems to have been less concerned about such laws in 2008, however, when the agency released a report on the “Political Activities Compliance Initiative” conducted under the George W. Bush administration. An alleged copy of the report, pointed out to ThinkProgress by Loyola University Chicago school of Law professor and issue expert Sam Brunson, reported that the IRS investigated 44 churches (in addition to other nonprofits) for violations of political action in the 2006 campaign season, but only sent four “written advisories” for “political intervention.” None appear to have been audited or stripped of their tax-exempt status.

The report appears to have been posted on the IRS website in 2008 and has since been referenced in several academic articles on the subject, but links to the document were seemingly scrubbed from IRS.gov around 2014 — shortly after the Tea Party targeting scandal.

The IRS has yet to respond to a ThinkProgress inquiry about the veracity of the report or why it has gone missing from their website.

Allowing churches to endorse candidates is really, really unpopular

Although Trump and a few conservatives have championed repealing the Johnson Amendment as something of a legislative Holy Grail, you’d be hard pressed to find many Americans who would say the same.

A 2016 PRRI poll found that not only do 71 percent of Americans oppose allowing churches to openly back politicians while maintaining their tax-exempt status, but majorities of every major American faith community also feel the same way. White mainline Protestants, Catholics, and black Protestants all reject the idea in sizable numbers, as does the group whose leadership keeps pushing it anyway: 56 percent white evangelical Protestants oppose further politicizing their pulpits, according to the poll.

Some faith groups are even actively lobbying against a Johnson Amendment repeal. In April, 99 faith groups — including the Evangelical Lutheran Church in America, the Presbyterian Church (USA), and the Episcopal Church — sent a letter to Congress speaking out against “any effort to weaken or eliminate protections that prohibit 501(c)(3) organizations, including houses of worship, from endorsing or opposing political candidates.”

“They’re doing this through a budget bill because they don’t think people notice budget bills. As a supporter of democracy … something this important deserves to be debated in public.”

The Los Angeles Times also published an editorial statement on Tuesday accusing Republicans of “engaging in stealth tactics” to gut the provision, which they say “could violate the Establishment Clause of the 1st Amendment.”

Groups like the Center for Inquiry — which pushes for a more secular society “based on reason, science, freedom of inquiry, and humanist values”— have also been working to draw attention to the GOP’s actions. “They’re doing this through a budget bill because they don’t think people notice budget bills,” Nick Little, the Center for Inquiry’s legal director, told ThinkProgress. “As a supporter of democracy… something this important deserves to be debated in public.”

Nevertheless, the issue remains a focus of groups like ADF, who have incorporated activism around the Johnson Amendment into a larger fundraising strategy.

“As a practical matter, the ADF has found this issue to be very salient,” Brunson told ThinkProgress. He pointed to ADF’s website, which flanks its Pulpit Freedom Sunday page with donate buttons.

Churches as havens for “dark money?”

Granted, Trump and Republican lawmakers would likely be showered in praise from the Religious Right if the provision gets passed. But the real drive may be about something else: money.

“There are groups, often among the evangelical right, who want to funnel large sums of money to political candidates,” Nick Little said.

As The Atlantic’s Emma Green pointed out last year, repealing the Johnson Amendment could prove catastrophic to political transparency efforts. If faith groups are allowed to retain their tax-exempt status but act in political ways, an individual may be more likely to contribute to a church or house of worship (which is tax deductible) than a political campaign (which isn’t tax deductible).

According to Philip Hackney, this tactic might quickly run into legal challenges, as other provisions of the tax code prohibit receiving deductions for political activity. But he added that churches still might play “fast and loose” with legal definitions.

“There are groups, often among the evangelical right, who want to funnel large sums of money to political candidates,” Little said.

And both Little and Hackney pointed to a larger issue that could arise in the absence of the Johnson Amendment: The influx of so-called “dark money” — political funds whose sources remain undisclosed — into churches. Churches are not required to publicize their large donors, meaning an individual could pump money into a church during an election cycle without ever having to make their donation public. The difference between a church and a Super PAC — neither of which are beholden to finance laws used to reign in campaign donations — would effectively vanish.

“You could have unlimited dark money flowing to a campaign if this gets passed, and there is nothing the IRS could do about it,” Little said. “They would be getting a double benefit.”

Sam Brunson was slightly less concerned about the potential impact of dark money, saying there are other parts of the tax code that would prevent a church from spending most of its money or time on political activities. The exact parameters of that hypothetical limit are a bit unclear, he said, but he doesn’t expect an “apocalypse” of dark money to overtake churches.

Still, Brunson acknowledged the Johnson Amendment helps protect faith communities that would prefer to remain apolitical, insulating them from political entities who could entice them with deep pockets. And even if dark money only has a limited impact on campaigns, he said, politicized megapastors with large churches in swing states could still turn the tide on Election Day.

“It probably doesn’t cost a church anything for a pastor to preach a sermon,” Brunson said.

The piece has been updated to clarify that Church at Pierce Creek’s lawyer was Jay Sekulow, now Trump’s lawyer.